I haven't played until the end, but seems there's a rpg like battle, which one of the enemy is mickey mouse.
And yeah... you can behead mickey there.
Disney heard this, and then they sued him, asked him to stop the game, close the site and pay 6000000yen.
the japanese news I read>> http://blog.livedoor.jp/janews/archives/6645769.html

you can see the screenshots there.
Seriously... I'm so speechless to comment more about this swt...

Remember how we are always warning against using copyrighted material or even making "fan games"? This is why. I wouldn't wish legal action on anybody, and the amount asked for is certainly excessive, but the fact remains that a copyrighted IP was used in a game that was sold for money. If it had been a free game, then asking him to take down the site and game with a cease and desist would probably have been the extent of Disney's legal action. However, money was made, and that makes everything much worse.

From the other thread you linked to:

About Music and Soundeffect
We do not own the copyright of the BGM and SEs.

That's bad. If you don't have the rights on EVERYTHING in your game, you can't charge a cent for it legally.

We, AmoRico, hold all the copyright and Intellectual Property of the game.

Apparently, no, they didn't. And this statement alone pretty much forces Disney's hand when Mickey Mouse is present in the game. Legally, at least in the U.S. (I don't know about Japan), a company must defend their IP or they could lose the rights to it.

The use of Mickey Mouse as a RPG enemy (apparently with voice intact as well - another SE they didn't have the rights for) is NOT covered under parody or fair use laws. To qualify under the Fair Use doctrine of the United States (which is relevant because Disney is an American company) the intellectual property must be used for "commentary, criticism, news reporting, research, teaching, library archiving and scholarship." In other words, you can use Mickey Mouse clips or images if you are reviewing or criticizing a Mickey Mouse movie or game, or if making a parody that sheds light or commentary on the Mickey Mouse character and Disney, or in a book about the history of Disney. You can't just inexplicably drop Mickey Mouse into your game.

Just because something is a doujin or an amateur fan production doesn't exempt you from these laws. Most of the time you will simply receive a "Cease and Desist" notice and nothing more will happen if you comply. But this game was SOLD, and internationally at that. That means the author profited by using someone else's IP, and that means monetary damages.

I feel bad for Nanashi, but this should be a lesson and warning for everyone else making games. Don't use sprites or characters you don't own the rights to.

I was going to go wtf... but it looks like shit is really happening.
And the ironic thing is I think it's Disney Japan pushing the fine... come on its just a doujin game -- Disney US wouldn't do such a thing... would it? Or would the fine have been much higher?

About defending IP, I remember reading an article about Bethesda vs Notch in the "Scrolls" naming issue... basically Bethesday said "A company HAS to defend its IP whether it wants to or not (in the case of seeming like punishing the little guy for a little thing). Not doing so will set a precedent and allow others to encroach upon its intellectual property rights in the future."

Also, can you change the thread title from hanako to nanashi? (I thought it was papillon for a moment there)

@LateWhiteRabbit
Japanese said it's free game. As far as I can remember, the 1st chapter is free, and they're thinking to make it as a paid one from chapter 2. They haven't released the chapter 2 yet when the last time I checked there. I don't know if they have released it after I checked or not, but there's a possibility that mickey mouse is appeared at 1st chapter (free one). I haven't checked it myself though.

I think many of Disney's arguments might not fly under US law. To me, this looks like a massive attorney broadside, offering either 2 choices:
-You can either go to court, spend thousands of dollars on attorney fees, and have a roughly 60% chance of losing and having to pay the final judgment.
-Or you can just settle now, take Mickey Mouse out of the game, and probably pay almost nothing.

Under US law, the exact sum they ask for in a complaint is not likely the actual money the defendant is going to pay at the end. It's somewhat of an intimidation tactic to ask for three thousand billion dollars in damages, even when you know you not going to get that full amount, so that you can scare the defendant into settling.

Don't ask me anything about how the Japanese legal system works or what Japanese trademark law looks like, since the only thing I know about that, I learned from Phoenix Wright.

DaFool wrote:I was going to go wtf... but it looks like shit is really happening.
And the ironic thing is I think it's Disney Japan pushing the fine... come on its just a doujin game -- Disney US wouldn't do such a thing... would it? Or would the fine have been much higher?

HAHAHA! Disney is the last company you want to screw around with. They've sued daycare centers for painting their characters on the wall! They've sued merchants for putting their characters on T-shirts without permission, they've even sued the Academy of Motion Arts and Sciences for using Snow White without permission.

Disney is incredible "sue happy" when it comes to IP copyright. Don't mess with the Mouse!

And while a lot of Japanese companies have traditionally had more of a lax stance on doujin books and games, allowing doujin authors to sell their work and culling talent from that pool, American companies are very different and have traditionally treated doujin (known as fan products over here) very harshly. Disney especially. See below as to why.

DaFool wrote:
About defending IP, I remember reading an article about Bethesda vs Notch in the "Scrolls" naming issue... basically Bethesday said "A company HAS to defend its IP whether it wants to or not (in the case of seeming like punishing the little guy for a little thing). Not doing so will set a precedent and allow others to encroach upon its intellectual property rights in the future."

That's correct. Disney is forced to take action unless they want to give up their right to sue anyone else in the future for infringing on their Mickey Mouse copyright. So basically American companies CANNOT allow fan works without officially licensing them unless they want to potentially weaken their IP or lose the right to protect its copyrights in the future. And regardless of whether or not this case is in Japan, Disney is an American company, so Disney must follow American law in bringing suit against Nanashi. It really doesn't matter because Japanese law doesn't officially allow doujin games either, most companies just look the other way.

Chu-3 wrote:@LateWhiteRabbit
Japanese said it's free game. As far as I can remember, the 1st chapter is free, and they're thinking to make it as a paid one from chapter 2. They haven't released the chapter 2 yet when the last time I checked there. I don't know if they have released it after I checked or not, but there's a possibility that mickey mouse is appeared at 1st chapter (free one). I haven't checked it myself though.

Then Disney may be pre-emptively suing on the basis that Nanashi was planning to make money using their IP. It the eyes of the court it is the same difference. Whether or not the defendant actually made money or not doesn't matter for bringing the suit, only that they intended to. Regardless, Disney doesn't allow fan games, and that is their right under the law. Whether it was commercial or not they are still within rights to sue and that can include monetary damages.

Again, do not make fan games or use characters or media you do not own. Sure, you may be ignored, or you may just get a letter telling you to stop, but you could get found and sued by an giant international corporation like Disney. So don't take the chance.

@Samu-kun:
You are right that damages asked for are not usually the same as damages actually awarded. I think that if Disney has already given a specific number for damages, however, that it is too late just to drop Mickey Mouse from the game and have them back off. Nanashi will likely have to go to court one way or the other. Disney is well-known for being litigious as I pointed out at the top of this post.

They've sued daycare centers for painting their characters on the wall! They've sued merchants for putting their characters on T-shirts without permission, they've even sued the Academy of Motion Arts and Sciences for using Snow White without permission.

It's worth noting that that only the t-shirts case was actually brought to court. And the t-shirt guy was actually already under criminal investigation for violating copyrights owned not only by Disney, but also Hard Rock Cafe, Pepsi, Playboy, and George Town University, so he wasn't quite the same kind of guy we have here. This is probably going to be more like the day care than the t-shirt guy: Disney sends letter threatening massive lawsuit. The other party stops whatever he's doing, and the two parties make a settlement out of court for whatever secret terms they want, which is presumably much better than whatever it would have been if they went to court.

I have no idea how exactly the Mickey Mouse here was used, but just because it was used doesn't immediately make it illegal or fineable for $78 000. There are still some defenses to copyright and trademark infringement, and this seems like a case where the defendant is cast in a relatively good light.

Last edited by Samu-kun on Sat Jan 28, 2012 4:30 am, edited 2 times in total.

Seems like a huge amount, but it seems like Disney wants to make an example out of this game maker. Unfortunate, but that's not too surprising. I've got to agree with LateWhiteRabbit, don't mess with the mouse. My guess is they want to make darn sure that no Disney characters spread into other visual novels. In a way, it makes sense. They sell tons of merchandise and games, so they would want to make sure each cent was into their coffers. But jeez, pretty darn scary move by a huge company. I would have thought maybe a warning and a ceast and desist would have done the trick...no need to bankrupt the group.

They've sued daycare centers for painting their characters on the wall! They've sued merchants for putting their characters on T-shirts without permission, they've even sued the Academy of Motion Arts and Sciences for using Snow White without permission.

It's worth noting that that only the t-shirts case was actually brought to court. And the t-shirt guy was actually already under criminal investigation for violating copyrights owned not only by Disney, but also Hard Rock Cafe, Pepsi, Playboy, and George Town University, so he wasn't quite the same kind of guy we have here.

I have no idea how exactly the Mickey Mouse here was used, but just because it was used doesn't immediately make it illegal or fineable for $78 000.

Mickey Mouse was used as an enemy in an RPG, Dragon Quest-style battle in the game, and apparently voiced with ripped Mickey Mouse dialogue recordings.

Whether or not it is fineable for 78K is for the courts to decide, but it is most definitely illegal. Neither Japanese nor American law allow fan games of someone else's IP. Japan may only rarely enforce it, but it is still illegal. Whether or not this will go to court or be settled outside of it makes no difference to the fact that what Nanashi did was illegal. I really doubt Nanashi has the desire to hire a lawyer and go to court and argue Fair Use for Mickey Mouse, since as I pointed out in my last post, that argument doesn't hold legal water according to my understanding of the facts in this case.

@Applegirl
Yes, this could very well be a calculated move to make an example of Nanashi from Disney. Knowing Japan's history of being lax with fan game prosecution, they are likely eager to scare others in the Japanese doujin scene away from using Disney IP in the future.

How's the japanese community react with this? (doujin community, 2channel etc)

applegirl wrote:Seems like a huge amount, but it seems like Disney wants to make an example out of this game maker. Unfortunate, but that's not too surprising. I've got to agree with LateWhiteRabbit, don't mess with the mouse. My guess is they want to make darn sure that no Disney characters spread into other visual novels. In a way, it makes sense. They sell tons of merchandise and games, so they would want to make sure each cent was into their coffers. But jeez, pretty darn scary move by a huge company. I would have thought maybe a warning and a ceast and desist would have done the trick...no need to bankrupt the group.

true, tezuka production comments that Disney lawyers are in the top 20 in the world o:, that's why they don't sue Disney

I think a fan game involving Mickey Mouse can still be legal under current US copyright law, depending on the following things:
First, it must criticize the content of the original work, or is used for an educational purpose. Then you have to look at more facts, including.
>It is not a direct copy of the copyright holder's work (a redrawn image of Mickey Mouse, or a voice sample of Mickey Mouse that you made yourself)
>It does not generate any revenue (it is somewhat of a myth of a myth that "not for profit" is no defense to copyright infringement. It actually can be a fact contributing to a defense if you do not generate any income from the use.)
>It is not largely related to the copyrighted work (Mickey Mouse is present, but none of the plot lines or themes found in a Micky Mouse work is present)

So if the text in the message box reads
"A wild Micky Mouse has appeared! Micky Mouse uses copyright infringement lawsuit against you! It's super effective!"
You could potentially have a fair usage argument, since you're criticizing Disney's penchant for bringing IP infringement lawsuits, as just one example. (It could also be a defense to any lawsuit Pokemon could bring against you, perhaps.) If it does say that, the defendant might actually have a decent case. Of course, the odds are stacked against him since Disney lawyers are very competent and might use other methods to win (Lots of other procedural ways to win a lawsuit than just the copyright law), but it wouldn't be such a simple matter as "you used Mickey Mouse, now you pay one million dollars." It's also a much harder case to win than the t-shirt case, since that guy was selling t-shirts in bad faith and just came off as a shady counterfeiter, while the facts here are very different.

A whole different issue is raised if it's based on trade mark law... At this point, it essentially comes down to whether a consumer will be confused as to thinking the visual novel was sponsored or made by Disney if they see the Mickey Mouse in it. Ah, the things that matter are like, the popularity of the trademark, the similarity between the infringing mark and the trademark, whether the same medium was used. Also, the fair usage doctrine also applies to trade marks, so it could be a possible defense as well.

Samu-kun wrote:I think a fan game involving Mickey Mouse can still be legal under current US copyright law, depending on the following things:
First, it must criticize the content of the original work, or is used for an educational purpose. Then you have to look at more facts, including.
>It is not a direct copy of the copyright holder's work (a redrawn image of Mickey Mouse, or a voice sample of Mickey Mouse that you made yourself)
>It does not generate any revenue (it is somewhat of a myth of a myth that "not for profit" is no defense to copyright infringement. It actually can be a fact contributing to a defense if you do not generate any income from the use.)
>It is not largely related to the copyrighted work (Mickey Mouse is present, but none of the plot lines or themes found in a Micky Mouse work is present)

All true, but from the link and my (admittedly poor) understanding of Japanese, it seems Nanashi used an actual Disney audio recording for Mickey's voice. If true that means he actually stole a Disney asset straight-up and put it in the game.

I find it most sad because apparently Mickey Mouse really does have nothing to do with the rest of the game, but Nanashi for some silly reason included the mouse anyway and brought all this on himself. Just like Burger King can't have Ronald McDonald suddenly appear on screen and wink, you can't just throw Mickey Mouse in your game ("Hi! I'm Mickey!") and then behead him.